Exceptions filed by MCWC to Judge’s Proposal for Decision in Nestle Case

Exceptions filed by Michigan Citizens for Water Conservation to Judge’s
Proposal for Decision in Nestle Case
May 15, 2020

Rarely does a ruling by an Administrative Law Judge overturn a permit issued by a state
agency. In the contested Case Hearing on the Nestle permit for PW-101, MCWC and
the Grand Traverse Band of Ottawa and Chippewa Indians had hoped the
administrative judge would have reversed the Snyder administration’s unwarranted
permission for Nestle to withdraw more than 500,000 gallons a day from a White Pine
Springs well near Evart. But routine prevailed. On April 24 th , the judge in the case before
the Department of Environment, Great Lakes and Energy (EGLE), issued a proposal for
decision that would uphold the permit, and recommend that Liesl Clark, Director of
EGLE, render a final decision in Nestle’s favor. Fortunately, the decision is only a
proposal, and our attorneys have advised us that MCWC and the Grand Traverse Band
have a right to file exceptions, and urge Director Clark and the Whitmer Administration
to reject the footloose interpretation of Michigan’s water laws for Nestle to sell another
210 million gallons of bottled water per year from the headwaters of our lakes and

The proposal from the Judge is full of errors and interpretations and a model based on
assumptions, not actual calculations of the effects, that tipped the cup toward Nestle.
We intend to demonstrate these errors through the filing of these exceptions as
provided by law. We trust Director Clark and the administration will reject the permit,
and follow the legal duty on EGLE to apply our water law standards strictly, the way
they were intended, to undo the thin justification for this permit in the first place. This
proceeding and case started with the Snyder Administration’s Department of
Environmental Quality when it granted the permit in April 2018, despite compelling legal
arguments and massive public opposition. Today, we have new leadership and a new
Director at the helm of EGLE. We have a new Attorney General who promised to
interpret the law for the good of people and environment rather than for the corporate
lobbyists who had controlled government for much too long.

During the fall 2018 state election cycle, many people were hopeful a change was
coming. Among the issues that arose was the need to turn things around in Lansing and
finally stop the assault on our precious waters by huge multi-national corporations like
Nestle and Enbridge and seek justice for those poisoned in Flint. The new
administration the people elected had made some promises to deal with these

In 2005, in relation to the lawsuit filed in Mecosta County in 2000, a Michigan appeals
court upheld the science and law that 400 gallons per minute from a well in a Michigan
glacial headwater spring, wetlands, or creek system causes substantial harm. The court
did so because the before, during, and after pumping data on the withdrawals and
pumping rates showed a direct correlation of pumping at 200 to 400 gpm, the drops in
flows and levels and serious impacts. But when the 2018 permit was issued, the data
was lacking, and what data existed was not used to calculate effects but fed into a
computer model targeted to find little harm.

Because the law allows parties to file exceptions and puts the final decision in the lap of
the Director of EGLE, the new administration and Director Clark have no choice but to
make the decision. The law gives Director Clark the power to decide whether or not
Nestle gets this permit, she can legally have the last word. By filing the exceptions and
legal brief with the Director today, we are urging her to conduct her own independent
review of the facts, the loose interpretations, and overturn a permit that was based on
twisting those facts and the law to favor private gain at the expense of our public water.
MCWC and the GTB today ask the Whitmer administration, the Attorney General and
Director Clark to return to respecting the paramount duty of our state leaders to protect
our state’s water and live up to the public trust responsibilities granted to it by our State
Constitution and water laws.

There is a solid basis for them to overturn the Nestle permit, and to reassert the
integrity of our rule of law and ethics that they stood up for during the 2018 campaign,
when voters made it clear that they wanted a government to apply the law to benefit the
people. We find it disturbing that the Attorney General just put her name to the
exceptions filed by EGLE seeking to return to the issue of jurisdiction settled by the
judge two years ago when we filed the contested case. She would throw out the case
altogether and grant the permit to Nestle. We expect better treatment after two years of
doing the work of the State. Under Michigan law, the state holds the public’s water in
trust for the benefit of everyone. After two decades of abuse of our common waters and
environment by a government too often under the corporate interests, it is time to put
water paramount as our constitution declares—above all else. We expect the Attorney
General and the Director of EGLE to take this opportunity, presented to them by our
persistent work, to actually look at the record and the laws in question and do what is
right for the people and our precious waters. We expect them to withdraw this permit for
Nestle’s water grab and direct their energies to repairing the injustices of lack of
affordable water access in communities such as Detroit and Flint.

Michigan Citizens for Water Conservation

Contact: Peggy Case
hildaheron@aol.com 231-275-2244

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